Testimony of Linda DeMartini, Countrywide DiMartini

IN THE UNITED STATES BANKRUPTCY COURTDISTRICT OF NEW JERSEY

IN RE: ) Bankruptcy No. 08-18700))

) JOHN T. KEMP, ) ) Debtor. ) ---------------------------------) )JOHN T. KEMP, ) Adversary No. 08-02448 ) Plaintiff, ) ) vs. ) )COUNTRYWIDE HOME LOANS, INC., ) Camden, New Jersey ) August 11, 2009 Defendant. ) 10:24 a.m. )---------------------------------)

TRANSCRIPT OF HEARINGBEFORE THE HONORABLE JUDITH H. WIZMUR

UNITED STATES BANKRUPTCY JUDGE

APPEARANCES:

For the Plaintiff: BRUCE LEVITT, ESQUIRE LEVITT & SLAFKES, PC

76 South Orange Avenue, Suite 305 South Orange, New Jersey, 07079

Cherry Hill, New Jersey 08003

For the Defendant: HAROLD KAPLAN, ESQUIRE FRENKEL, LAMBERT, WEISS, WEISMAN

& GORDON, LLP80 Main Street, Suite 460West Orange, New Jersey 07052

Audio Operator: NORMA SADER

2

Transcribed by: DIANA DOMAN TRANSCRIBING SERVICESP.O. Box 129Gibbsboro, New Jersey 08026-0129Phone: (856) 435-7172Fax: (856) 435-7124

E-mail: [email protected]

Proceedings recorded by electronic sound recording, transcriptproduced by transcription service.

3

LINDA DeMARTINI, DEFENSE WITNESS, SWORN 1

THE COURT: Please have a seat. Your full name,2

first and last, and spell your last name, please. 3

THE WITNESS: My name is Linda DeMartini. The last4

name is spelled D-E capital M-A-R-T-I-N-I.5

DIRECT EXAMINATION6

BY MR. KAPLAN: 7

Q Okay, Ms. DeMartini, would you -- who are you employed by? 8

A I am employed by Bank of America Home Loans, formally9

known as Countrywide Home Loans.10

Q Okay. And how long have you been employed there? 11

A A total of almost ten years. 12

Q And what is your position there? 13

A I am an operational team leader for the Litigation14

Management Department currently. I’ve been there just about a15

year. 16

Q Are you familiar with the documents relating to Mr. Kemp’s17

mortgage loan? 18

A Yes, I am. 19

Q Okay. Now who, based upon your knowledge of the loan20

documents, who’s presently the owner, holder, transferee of21

the note? 22

A Well, the owner as in the investor, that would be Bank of23

New York, and we -- we are the servicer, Bank of America Home24

Loan, Servicing, LP, formally known as Countrywide Home Loan25

4DeMartini - Cross

Servicing, LP. 1

Q Okay. 2

MR. KAPLAN: I’d like this marked as I guess D-1. 3

Okay, may I approach the witness, Your Honor? 4

THE COURT: Yes.5

BY MR. KAPLAN: 6

Q Could you tell the Court what that document is? 7

A That’s the allonge to the promissory note. 8

Q And is that the original? 9

A Yes, this is. 10

Q And it references -- what -- could you -- and who signed11

that document? 12

A Sharon Mason. 13

Q And what’s Ms. Mason’s position with Country -- 14

A She is Vice President. She’s actually part of our15

Bankruptcy Risk Litigation Management Department. She’s16

actually my boss’s boss. 17

Q Okay. And you’re familiar with Ms. Mason’s signature? 18

A Yes, I know it very well. 19

Q And that’s Ms. Mason’s signature? 20

A Definitely. 21

Q And the allonge is -- the purpose of the allonge? 22

A It shows the transfer to Bank of New York as the trustee. 23

Q Okay. So it -- it’s your testimony that Bank of New York24

is trustee as the holder or the investor of that loan? 25

5DeMartini - Cross

A Yes, that’s correct. 1

MR. KAPLAN: Your Honor, essentially she has2

testified to the document. I really don’t have any other3

questions that -- 4

THE COURT: Well, let’s cross. 5

CROSS-EXAMINATION6

BY MR. LEVITT: 7

Q Ms. DeMartini, you said you’re familiar with the loan8

documents? 9

A Hm-hmm.10

Q What do they consist of? 11

A Well, we’ve got the notice there, the mortgage is there. 12

In our system we have any of the documents -- settlement13

statement, title policy, every single document that would have14

been signed at the time that the loan was taken out. 15

Q When was the first time that you saw those documents? 16

A A few weeks ago. 17

Q Were you at all involved in the preparation of the proof18

of claim? 19

A No, I was not involved in the proof of claim. That would20

have been before it got to the Litigation Department. 21

Q When was the first time that you saw the allonge to the22

promissory note? 23

A Approximately two weeks ago. 24

Q And how was it that you came to see the allonge to the25

6DeMartini - Cross

promissory note? 1

A Well, in my role as a supervisor in the department I have2

litigation specialists who work for me. When cases are coming3

up, I review their cases as a regular matter of course so I’d4

be reviewing the documents with that. When this date came up5

as far as having this hearing today and it became known to me6

that I was most likely going to be the one traveling here to7

be a part of it, I made sure that I got involved in every8

aspect of the case. 9

Q When was this allonge prepared? 10

A This allonge would have been prepared by my specialists. 11

I don’t have the exact date committed to memory, but this12

would have been done within the last couple of months most13

likely. 14

Q So one of your employee’s prepared the allonge? 15

A One of my employee’s would have taken -- would have gotten16

the allonge and we would have been the ones that obtained the17

signature from Sharon, yes. 18

Q So it was just recently signed? 19

A Fairly recently signed, yes. 20

Q Signed essentially in contemplation or in the course of21

this litigation, correct? 22

A Most likely. 23

Q And it was prepared in your office? 24

A It would have been -- whether it was originally prepared25

7DeMartini - Cross

in my office or not I can’t answer to that. I can tell you it1

was signed in our office because Sharon’s the one that signed2

it -- 3

Q So the original -- 4

A -- and I’ve been to her office. 5

Q -- the original was located in your office? 6

A Yes. 7

Q Where’s your office located? 8

A Simi Valley, California. 9

Q And has the original of this allonge remained in your10

office until you appeared here today? 11

A We had sent it on to -- to our attorneys. They were in12

possession of it. 13

Q And again, who do you believe is the holder of the note14

and mortgage here? 15

A Well, Countrywide -- Bank of America -- whatever we’re16

calling ourselves these days, we are Bank of America now -- we17

originated this loan. It was originated via a broker and it’s18

really always been a Countrywide loan. The investor is Bank19

of New York. We are the servicer of the loan. 20

Q Now, when you say it’s really a Countrywide loan, wasn’t21

it sold? Wasn’t this loan securitized and ultimately sold --22

sold to this trust? 23

A Right, it would have been securitized and sold. They are24

the investors of the loan. But we are the ones that would25

8DeMartini - Cross

have originated it, we are the ones that have always serviced1

it. 2

Q Today who is the owner of the loan? 3

A Bank of New York. 4

Q Bank of New York? 5

A As -- as the trustee for the certificate holder CWABS,6

Asset-Backed Securities series number -- 7

Q And who is in possession of the note? 8

A Who is in possession of the note? We have the note in our9

origination file. 10

Q So -- so Bank of New York as trustee does not hold the11

note, is that correct, or is not in possession of the note?12

A The original note to my knowledge is in the origination13

file. 14

Q Where is the -- do you have it here today? 15

A No, I don’t have it with me here today. 16

Q So you don’t have the note? 17

A It’s in our office. 18

Q So it’s in your office, it’s not with this trust that owns19

the -- that’s supposedly holds the -- or is the owner of this20

note, is that correct? 21

A That’s correct. 22

Q And your testimony is that this allonge was never23

submitted to -- it was never in the possession of Bank of New24

York as trustee for the certificate holder, is that correct? 25

9DeMartini - Cross

MR. KAPLAN: Your Honor, I object. Countrywide or1

Bank of America is the servicer. They possess and hold all2

the documents. 3

THE COURT: Don’t give me an argument, that’s not an4

objection to the question. I don’t mean to be -- to cut your5

off, but you’re welcome to make that argument bottom line, but6

that’s a perfectly proper question. 7

BY MR. LEVITT: 8

Q And this allonge, it’s a stand-alone document, correct? 9

It’s not attached to anything, is that correct? 10

A I’m not sure I’m understanding your question. 11

Q Was there anything -- when you brought the original that’s12

in front of you, did you remove it? Was it stapled to13

something else? 14

A No, it wouldn’t have necessarily been stapled to something15

else. There would have probably been other documents showing16

the -- you know, we would have shown her the note. We would17

have reviewed all of that before. 18

Q And where are all the documents that you showed her? 19

A Well, I have copies of -- I have a copy of the note, I20

have a copy of the deed with me here today. 21

Q And those -- 22

A They’re signed copies. 23

Q Can you show me exactly the documents that you showed her24

when you had her sign this allonge? 25

10DeMartini - Cross

A They’re probably right -- well, they would be in that1

clump there. That’s mostly the Pooling and Servicing2

Agreement, the larger one. 3

Q This one? 4

A Yeah. There’s the note in there, there’s the deed and the5

mortgage and you sign it. 6

Q You just -- 7

MR. KAPLAN: May I provide this -- 8

MR. LEVITT: -- I’m sorry.9

MR. KAPLAN: -- provide this note? 10

MR. LEVITT: Yeah, go ahead. 11

THE WITNESS: Because this was provided to me by my12

specialist to -- to bring along so that I have the documents13

here for you today. 14

BY MR. LEVITT: 15

Q Let me ask you this. Did you show those documents to --16

is it Sharon Mason? 17

A Did I personally show the documents? Whoever brought her18

-- and to be honest with you, I don’t know if it was me or my19

specialist, Dee, who brought them to her -- whoever brought20

them to her would have had them with them, yes, whichever of21

the two of us. 22

Q Who brought them to her? 23

A Generally speaking, it would have been me, but I don’t24

recall bringing this particular one to her so I believe it was25

11DeMartini - Cross

Dee. 1

Q So you don’t recall bringing it, you don’t recall -- and2

you don’t know what documents were shown to her, is that3

correct? 4

A No, I know what documents were shown to her because5

they’re right here and they -- and they’re all together. 6

Q Did you bring those documents to Sharon Mason? Did you7

personally? 8

A Not to my knowledge, no. 9

Q Do you know specifically who brought those documents to10

Ms. Mason? 11

A My specialist, Dee. 12

Q And you saw her bring the documents to Ms. Mason?13

A Did I physically stand over her -- 14

Q Yes. 15

A -- and witness it? No. 16

Q Okay. Is the original note in that stack of documents? 17

A An imaged copy of the signed note is in here. 18

Q Is -- 19

A The absolute original, no, it is not. 20

Q And again, my question before was was this attached to the21

note? This allonge, was it attached physically, with a22

staple, with a piece of glue -- was it attached? 23

A With a staple? No, because then it would have a hole in24

it. But it would have been brought along with it. We would25

12DeMartini - Cross

have shown it to her. 1

Q But again, now again getting back to my other question, so2

this is a stand-alone document, it wasn’t attached to3

anything? 4

A Okay, then yes. 5

Q Okay. And can you take a look at the -- what you believe6

to be the good copy of the note that you have? 7

A Okay. 8

Q Do you mind separating it from the rest of the papers?9

A Sure, I’ll take it apart. 10

(Pause in proceedings) 11

A Okay, and your question? 12

MR. LEVITT: Your Honor, may I approach the witness? 13

THE COURT: Sure. 14

BY MR. LEVITT: 15

Q Not the mortgage, the note -- 16

A Yeah, I’ve got all kinds of stuff. 17

MR. LEVITT: Your Honor, if you could excuse us one18

second. There seems to be a discrepancy between what the19

witness has and what my office was provided.20

THE COURT: Certainly. 21

MR. KAPLAN: Judge -- 22

THE COURT: And while you look at that, let me see23

what’s going on with the other case. You’re welcome to take a24

few minutes. 25

13DeMartini - Redirect

(The Court hears another matter)1

MR. LEVITT: Your Honor, with counsel’s permission,2

since we have stipulated, I’d like to provide a copy to Your3

Honor. 4

THE COURT: All right. Is this a copy that we can5

mark? 6

MR. LEVITT: It’s an exact copy and we can mark that7

as joint Exhibit 1, I believe. 8

THE COURT: J-1, interest only adjustable rate note. 9

BY MR. LEVITT: 10

Q Now, that document is the note that was contained in your11

file?12

A Yes. 13

Q And there’s no endorsement on the last page of that note,14

is there? 15

A No -- 16

Q There’s -- 17

A -- there’s no signature.18

Q Is there room on the bottom if somebody wanted to put Pay19

To The Order Of? Would there be room on the bottom? 20

A Well, I’m sure you could find a way to fit it in. 21

Q Okay. 22

MR. LEVITT: I have no further questions of this23

witness, Your Honor. 24

THE COURT: All right. 25


MR. KAPLAN: Cross-examine, Your Honor? 1

THE COURT: Please, please. 2

REDIRECT EXAMINATION3

BY MR. KAPLAN: 4

Q Ms. DeMartini, is it generally the custom to -- for your5

investor to hold the documents? 6

A No. They would stay with us as the servicer. 7

Q And are documents ever transferred to the investor? 8

A If we service-release them they would be transferred to9

whomever we’re service-releasing them to. 10

Q So I believe you testified Countrywide was the originator11

of this loan? 12

A Yes. 13

Q So Countrywide had possession of the documents from the14

outset?15

A Yes. 16

Q And subsequently did Countrywide transfer these documents17

by assignment or an allonge?18

A Yes. 19

Q And -- 20

A Well, transferred the rights, yes, transferred the21

ownership, not the physical documents.22

Q So the physical documents were retained within the23

corporate entity Countrywide or Bank of America?24

A Correct. 25

15DeMartini - Recross

Q Okay. And would you say that this is standard operating1

procedure in the mortgage banking business?2

A Yes. It would be normal -- the normal course of business3

as the reason that we are the servicer, as we’re the ones that4

are doing all the servicing, and that would include retaining5

the documents.6

Q Now, you were asked about whether or not the note could be7

-- was endorsed at the bottom. Is it generally the practice8

to endorse the actual note or to use an allonge?9

A It’s -- I’ve never seen an actual note that has an10

endorsement on the bottom.11

Q So would you say it’s normal -- 12

A It’s generally more -- 13

Q -- to have an allonge?14

A Yeah, it would be more normal to have an allonge.15

Q Okay. And once the allonge was signed, what would16

generally happen to the allonge?17

A Well, it would also be imaged and it would be recorded and18

it would be put in our system and it would be kept as a normal19

course. In a situation like this, we forwarded it onto the20

attorneys because of the case but -- 21

Q Okay. And if it had not been forwarded to the attorneys,22

what would have happened to the allonge? 23

A It would have ended up in the file with everything else.24

Q And the note attached to it?25


A Yes. 1

Q Thank you. 2

MR. KAPLAN: I have no further questions, Your3

Honor. 4

MR. LEVITT: Just briefly, Your Honor.5

RECROSS-EXAMINATION6

BY MR. LEVITT:7

Q Ms. DeMartini, you testified that this allonge was just8

prepared a couple of weeks ago, correct?9

A Yeah, a short time ago, yes. 10

Q And wasn’t it prepared because counsel called up and said11

we need and allonge?12

A Yes. 13

Q So it wasn’t your normal course to have an allonge in this14

situation, correct? 15

A Well -- 16

Q When was this loan made? 17

A This loan was taken out I believe in 2006 -- yes. 18

Q So between 2006 and 2009 when you got a phone call from19

counsel that said we’ve got a problem, prepare an allonge,20

there was no allonge, correct? 21

A There wasn’t an allonge prior to that, no. This loan,22

like I said, it was always -- this was a loan that we23

originated that has always been within the company that yes,24

it was sold to -- as Bank of New York as the trustee and25


securitized, but there wasn’t a need for an allonge prior to1

this case.2

Q Because there was no litigation pending, correct? 3

A Well, because there was no litigation -- 4

Q Thank you. 5

A -- and because there was nothing to -- to get in the way6

of the fact of the normal course of -- of the way that this7

loan’s being executed and being -- 8

Q That’s fine. 9

A -- being serviced. 10

Q Thank you. 11

MR. LEVITT: That’s it, Your Honor. 12

MR. KAPLAN: One more question, Your Honor.13

REDIRECT EXAMINATION14

BY MR. KAPLAN: 15

Q Was it the intention of Countrywide to assign both its16

rights in the mortgage and the note to Bank of -- to Bank of17

New York as trustee? 18

A Yes. 19

THE COURT: Say that again? 20

BY MR. KAPLAN: 21

Q Was it the intention of Countrywide to assign its rights22

in both the note and the mortgage to Bank of New York? 23

MR. LEVITT: I’m going to object to the question,24

Your Honor. I’m not sure this witness is competent to answer25

18DeMartini - By the Court

that question based upon the foundation laid. 1

THE COURT: I agree. 2

MR. KAPLAN: Well, Your Honor, they -- to the extent3

that there wasn’t a physical document at some -- at the time,4

they remediated that by signing the allonge and facilitating5

their intentions. 6

THE COURT: Well, that’s certainly a valid argument,7

but it’s not -- it still doesn’t answer the question of8

whether Ms. DeMartini can speak for Countrywide in terms of9

their intent in doing anything. 10

MR. KAPLAN: Well, it’s evidence that it was their11

intent to assign the mortgage. 12

THE COURT: It very well may be, and we’ll leave it13

at that. 14

MR. KAPLAN: Okay. 15

THE COURT: Objection sustained. Let me ask you a16

couple of questions. 17

EXAMINATION18

BY THE COURT: 19

Q There was an unexecuted allonge to America’s Wholesale20

Lender that was filed with the proof of claim. Is that in21

your file as well, that -- 22

A Yeah. I have the -- the unsigned copy in there. 23

Q And it is unsigned? 24

A The old one? Yeah, that’s the -- the copy I have, it25


looks like it’s unsigned, yeah. 1

Q So is it the normal practice of Countrywide not to sign2

allonges in the normal course?3

A I can’t answer to why that one was unsigned and that was4

in there. When a loan goes into bankruptcy, our Bankruptcy5

Department is the one that would be the ones actually6

preparing and filing the proof of claim. Our group gets7

involved when things turn to litigated matters -- 8

Q But I’m not -- 9

A -- and so that’s why I can’t speak to what they do in10

their -- in their normal course of action. I haven’t seen an11

unsigned one before. 12

Q Well, I’m not talking about the process of filing a proof13

of claim. I’m talking about the customary business practice14

of Countrywide when a loan is transferred, when ownership is15

transferred, when in this case the mortgage assignment16

occurred on March 24th, 2008, correct? 17

A Yes. 18

Q And would that have been the date that the ownership of19

the note and mortgage were sought to be transferred to Bank of20

New York as trustee? 21

A That would have been the day they got the ownership, yes. 22

Q So the question is whether you know whether it’s normal23

practice for Countrywide to execute an allonge at the time24

that that transfer takes place.25


A I don’t believe that they’re always executed exactly when1

the transfer takes place. I believe that it often times2

happens that it happens after the fact.3

Q And does it always happen?4

A I can speak that it always happens, no.5

Q So there’s no routine that requires internally, to your6

knowledge, that the allonge be executed in connection with the7

transfer of ownership?8

A No, I don’t think that there is a norm in that respect9

because in a normal course of action and for -- and normal is10

kind of a hard word anyway -- but -- 11

Q A normal business practice, an ordinary --12

A -- but as a normal business practice with a normal loan,13

often times there really isn’t a need for it unless the loan14

is going to continually to be sold, and since this loan was --15

yes, it was transferred to Bank of New York as trustee as it16

was securitized, but it wasn’t that another mortgage company17

had the loan and then we bought it from them. Like I18

mentioned, this was always done by Countrywide and we19

securitized it and we -- you know, we sold it to them -- 20

Q This was done -- 21

A -- and so -- 22

Q -- I’m not asking whether it was necessary, I am asking23

whether there was an ordinary business practice to sign an24

allonge and the answer is no, there was not?25


A I don’t believe so.1

Q Countrywide, the same entity as the originator of the2

loan, serviced the loan from the outset or was it a different3

aspect of the company? 4

A No. It would have always been the same. Even though Bank5

of America has taken over Countrywide so to speak and we are6

now wholly owned by Bank of America, all of the Countrywide7

loans are still being serviced and the Bank of America --8

prior Bank of America loans, they’re all still being serviced9

and done separately. This has always been by Countrywide.10

Q Okay. Putting aside the takeover by Bank of America, this11

loan was given on May 31st, 2006, correct? 12

A Yes. 13

Q And when the loan was given, after the loan was given,14

Countrywide Home Loans, Inc. retained the servicing on the -- 15

A Yes, that’s correct. 16

Q And as of March 24th, 2008, that continued to be the case,17

is that right?18


Q And there was a Pooling and Servicing Agreement between20

Countrywide and -- 21

A Bank of New York.22

Q -- Bank of New York -- 23

A Yes. 24

Q -- regarding the continued servicing of the loan, is that25

22Levitt - Argument

right?1


Q And to your knowledge -- I think you might have the3

servicing arrangement -- 4

A Yes, I brought a copy of it.5

Q -- with you, to your knowledge, is there any provision6

that in the servicing of this loan that Countrywide acts as7

the agent for Bank of New York in terms of possession of8

original documents including the note in connection with this9

transaction?10

A I have the Pooling and Servicing Agreement there. It’s11

over 200 pages long. I’ll be very honest; I did not read the12

entire Pooling and Servicing Agreement. I do know that it is13

our normal course of action with the loans that we service14

that we are the ones that retain the -- that we retain those15

documents.16

Q Could such a clause be included in that, and if there were17

such a clause, would that -- what would be the effect of that? 18

Should I look for that clause? Should I ask you to look for19

that clause, or is it a fruitless enterprise?20

MR. LEVITT: Your Honor, I think -- and I have it21

also and it is a very thick document, Your Honor -- there are22

other provisions in this document that I think would be --23

even if there was something in there that says they could24

retain documents, there’s other provisions in this document25

23Levitt - Argument

which would be contradictory because there’s provisions in the1

Pooling and Servicing Agreement that say that documents have2

to be delivered to an intermediary between Bank of America and3

Bank of New York, the --4

THE COURT: Well, shouldn’t I consider all of that? 5

In other words, your -- one of your key points is the note was6

not properly transferred because possession of the original7

note was not given to the new owner, is that right? 8

MR. LEVITT: Partially, Your Honor. 9

THE COURT: Okay. 10

MR. LEVITT: But again, I’m not -- 11

THE COURT: What’s the -- 12

MR. LEVITT: -- but I’m not raising --13

THE COURT: What part of it is -- 14

MR. LEVITT: -- but I’m not -- I’m not defending15

this. The proofs that have been submitted to the Court are16

that there’s a piece of paper that they’re calling an allonge17

that was prepared in the course of this litigation that18

they’re relying on as an endorsement. 19

THE COURT: You’re right. 20

MR. LEVITT: I haven’t -- 21

THE COURT: You’re right, but -- 22

MR. LEVITT: But I haven’t heard -- 23

THE COURT: -- I’m asking the question, and maybe it24

should have been asked otherwise, but if there is such a25

24Levitt - Argument

provision in the servicing agreement about the retention of1

possession as agent for the owner -- 2

MR. LEVITT: And if -- if -- 3

THE COURT: -- what part of your argument is it? In4

other words, you say possession of the document is part of the5

argument. What else is a part of the argument? 6

MR. LEVITT: No, but possession -- you have to have7

possession of the document but in addition to possession, you8

either have to have an endorsement, or you have to have proof9

that these documents were actually transferred to the ultimate10

owner, even if the agent for the owner is holding them. But11

there still has to be proof that it was delivered from A to B12

to C but none of those proofs have been submitted and it’s not13

my burden, Your Honor. 14

If counsel wants to say all right, forget the holder15

argument, I lost on holder but here’s my case that this note16

was transferred from A to B to C, here’s the delivery receipts17

and yeah, it may be sitting in somebody’s vault in California18

and not with this trust, fine. But I haven’t heard those19

proofs and I don’t think the Pooling and Servicing Agreement20

gives us that, Your Honor. We need to see the delivery21

receipts, we need to show the chain and there’s nothing before22

the Court. 23

THE COURT: Understood. Mr. Kaplan, is there24

anything in those documents in the Pooling and Servicing25

25Levitt - Argument

contract that would -- 1

MR. KAPLAN: That’s a good question, Your Honor,2

but, you know -- 3

THE COURT: Don’t you think you -- 4

MR. KAPLAN: -- and I believe the witness’s5

experience is that documents are not physically transferred6

from party to party to party. 7

THE COURT: But it’s not experience that we’re8

talking about, it’s UCC requirements. 9

MR. KAPLAN: I understand. 10

THE COURT: Is Mr. Levitt right when he says that11

some kind of delivery of possession is required in order to12

qualify as a transferee, not a holder? I think we’ve pretty13

well established that the affixing that is required for holder14

in due course status as not apparent in this case, has not15

been established, but if you establish under UCC requirements16

that there is a proper transfer, there may still be17

opportunity to enforce the obligation. 18

MR. KAPLAN: Right. Your Honor, I understand but, I19

mean, there’s no way I’m going to argue that there was a20

physical transfer. Countrywide was the servicer, the21

originator. They had the documents -- 22

THE COURT: Right, there was no -- 23

MR. KAPLAN: -- they physically signed the necessary24

documents required to document their ownership interests being25

26Kaplan - Argument

transferred to the trust -- 1

THE COURT: That’s the issue. In other words, 2

I’m -- 3

MR. KAPLAN: -- but they didn’t physically deliver4

it. 5

THE COURT: -- I’m raising the possibility that the6

Pooling and Servicing Agreement might contain provisions that7

would serve to offer Countrywide an out, meaning I’m not --8

you know, here to advocate Countrywide’s cause, but I am here9

to get to the -- as close as I can to what should happen here. 10

MR. LEVITT: Your Honor, I’ll answer the question11

because I did see in the index -- and if Your Honor would like12

I can hand up the Pooling and Servicing Agreement. This is13

the Pooling and Servicing Agreement that was provided by the14

defendant and I’ll call your attention to Section 8-13. 15

THE COURT: Thank you. 16

MR. KAPLAN: What page is he on? 17

MR. LEVITT: It’s 150. 18

THE COURT: 8.13, “Access to records of the trustee. 19

The trustee shall afford the sellers, the depositor, the20

master servicer, the NIM Insurer and each certificate owner21

upon reasonable notice during normal business hours access to22

all records maintained by the trustee” -- 23

MR. LEVITT: That tells me the trustee has the24

records, Your Honor. That’s as close as I can get. But I’ll25

27Kaplan - Argument

let you finish. 1

THE COURT: Well, yes, that doesn’t seem to get at2

it. If there is no authority in this document for Countrywide3

to act as the agent for the trustee in maintaining the4

original documents, then we face squarely the question of5

whether lack of possession by the owner, the retention of6

possession by the servicer, violates the transferee status of7

the owner, or whether the servicer who filed the proof of8

claim can stand by that status to succeed against this9

challenge. 10

MR. KAPLAN: Well, Your Honor, the servicer has11

authority to act in servicing the loan, including filing a12

proof of claim under the Pooling and Servicing Agreement. In13

addition, I believe there’s a power or attorney that Bank of14

New York has provided to Countrywide to act on their behalf to15

administer -- 16

THE COURT: Well, where is that? 17

MR. KAPLAN: I’d be happy to provide that to Your18

Honor. Okay, we can mark that as Defendant’s Exhibit 2. 19

THE COURT: Did we mark this copy of the servicing20

agreement as Defendant’s Exhibit 3?21

MR. KAPLAN: That’s fine, Your Honor. 22

THE COURT: And did we allow you a chance to look at23

this document to ascertain what in it might be helpful to 24

you -- 25

28Kaplan - Argument

MR. KAPLAN: Your Honor, there’s -- 1

THE COURT: -- rather than just leaving it to me to2

peruse? 3

MR. KAPLAN: Well, that’s fine, Your Honor, we’ll be4

happy to go through and submit to Your Honor references to the5

various provisions in the document. 6

THE COURT: Okay, let’s take a look, D-2, power of7

attorney signed by the trustee. “Under the Pooling and8

Servicing Agreements” -- “constituting and appointing9

Countrywide Home Loan Servicing, LP full power of substitution10

and re-substitution for the limited purpose of executing and11

recording any and all documents necessary to effect a12

foreclosure of a mortgage loan, the disposition of an REO13

property, an assumption agreement or modification agreement to14

supplement -- or supplement to the mortgage note, mortgage or15

deed of trust and a reconveyance, deed of reconveyance or16

release or satisfaction of mortgage or such instrument17

releasing the lien of a mortgage in connection with the18

transactions contemplated in those certain Pooling and19

Servicing Agreements, by and among the undersigned,” et20

cetera. 21

“The undersigned also grants” -- “full power and22

authority to do and perform each and every act and thing23

requisite and necessary to be done in and about the premises24

as fully to all intents and purposes as might or could be done25

29Kaplan - Argument

in person to effect items one, two and three above, hereby1

ratifying and confirming all that said attorneys in fact and2

agents or any of them or their substitutes may lawfully do or3

cause to be done by virtue hereof.” 4

Well, there’s a question mark -- does this power of5

attorney authorize the agent/servicer to hold the original6

documents in substitution for and satisfaction of the7

requirements of the UCC. I mean, that’s a question mark. 8

MR. KAPLAN: I understand. I understand, Your9

Honor. But, I mean, Your Honor’s probably familiar, mortgage10

lenders and servicers don’t normally transfer documents back11

and forth in order to effectuate physical transfer. They12

utilize agents or servicers to execute documents and retain13

the documents and they don’t send them across the country by14

messengers or Federal Express to go to different vaults to be15

maintained because -- 16

THE COURT: And that’s fine. That’s -- 17

MR. KAPLAN: And that’s standard -- 18

THE COURT: I mean, I’m not accepting your testimony19

as an expert -- 20

MR. KAPLAN: Yeah, I know, I know.21

THE COURT: -- to that effect -- 22

MR. KAPLAN: But I think it’s reasonable -- 23

THE COURT: -- but I’m accepting it and it may very24

well be reasonable. Is it permissible under the Code. 25

30Kaplan - Argument

MR. KAPLAN: I understand, okay. 1

THE COURT: That’s all I’m asking. 2

MR. KAPLAN: All I’m saying is I believe that it’s a3

standard business practice amongst the mortgage banking4

industry and servicing industry not to physically move5

documents from party to party unless there is a change of6

servicing, in which case the physical files then must be sent7

to the new servicer, not necessarily the new investor, holder8

or -- you know, recorded owner of an assignment of mortgage,9

et cetera, but the new servicer. 10

THE COURT: Well, it certainly makes sense and11

presumably the Pooling and Servicing Agreement will clarify12

that there is agency status for that purpose and we would try13

to understand whether that would be sufficient for UCC14

purposes. What else should I be looking at, counsel? We’re15

talking first about possession. What else are we talking16

about? All right, let me ask one question before I forget. I17

take it that the allonge that we’ve looked at, the new18

allonge, has not been recorded?19

MR. KAPLAN: Well, normally you would not record a20

note, Your Honor. The note passes from party to party. It’s21

like a check -- 22

THE COURT: Right. 23

MR. KAPLAN: -- it doesn’t get recorded in the24

County Clerk’s Office generally -- 25

31Kaplan - Argument

THE COURT: That’s fine. 1

MR. KAPLAN: -- so it would normally be placed in2

original -- with all the original documents and essentially3

attached to the note. 4

THE COURT: Understood. Okay, what else should I be5

looking at?6

MR. LEVITT: Your Honor, if Your Honor does want to7

focus on the Pooling and Servicing Agreement, there are other8

provisions in the Pooling and Servicing Agreement that Your9

Honor might want to look at, specifically -- and if I could10

just grab my copy -- 11

THE COURT: Of course. Is this your copy?12

MR. LEVITT: Yes, it is. Actually, I have -- I have13

excerpts -- copies of excerpts, Your Honor, and I’ll --14

actually I’ll hand up the original to you so -- 15

MR. KAPLAN: I would also argue, Your Honor, in that16

-- as I said, I believe it’s standard operating procedure for17

servicers, especially when they were the originator of the18

documents and when they sell them or securitize them and19

remain the servicer, to execute the documents that are20

required for transfer, but that there’s not a physical21

transfer. And if you’re going to determine -- 22

THE COURT: Mr. Kaplan, you’re testifying about the23

ordinary -- 24

MR. KAPLAN: My witness I think can testify to that25

32Colloquy

but I think -- 1

THE COURT: Well, you’re welcome to have -- 2

MR. KAPLAN: -- I think Your Honor can -- 3

THE COURT: -- her testify.4

MR. LEVITT: She has. 5

MR. KAPLAN: -- I think Your Honor’s experience can6

reasonably allow you to take judicial notice that documents7

don’t go from party to party, that they remain with the8

servicer. 9

MR. LEVITT: I don’t -- I don’t think the -- 10

THE COURT: I’m not going to take judicial notice of11

that. 12

I noticed that this particular copy is unsigned. Do13

you know when the Pooling and Servicing Agreement would have14

been signed?15

THE WITNESS: We went to get a signed copy the other16

day and we were told that it is not customary for us to have17

the signed document so I wasn’t able to access the signed18

document. We have the copy -- 19

THE COURT: But -- 20

THE WITNESS: -- but we don’t have the signed21

original. I don’t have the signed of that. That’s the one22

document I don’t have the original -- access to the original23

of. 24

MR. LEVITT: Your Honor, again, I’m not in any way,25

33Colloquy

shape or form testifying but I can advise the Court that I1

spent many hours trying to find this Pooling and Servicing2

Agreement on the SEC website where they have to be filed and I3

could not find it, so the only copy of the Pooling and4

Servicing Agreement that I have is this unsigned copy provided5

by counsel for the defendant which I have to accept as a valid6

document. 7

But I can tell Your Honor, the SEC website is where8

-- where you can find them; I can’t find it. I can find a lot9

of others in a similar name but with different numbers. I10

can’t find this one.11

THE COURT: Is there reference in this document that12

I have in my hand to this particular mortgage? 13

THE WITNESS: I don’t have it in front of me.14

THE COURT: There are all kinds of exhibits -- 15

THE WITNESS: It’s -- 16

THE COURT: -- that have numbers but don’t have17

substance. 18

(Pause in proceedings)19

THE COURT: Have you looked at that, counsel?20

MR. LEVITT: Excuse me, Your Honor? 21

THE COURT: Have you looked at whether there is22

reference to this particular mortgage? 23

MR. LEVITT: No, Your Honor. Your Honor, it wasn’t24

again my experience -- because I’ve been reading a lot of25

34Colloquy

these lately -- my experience is there’s a schedule that’s1

annexed. Very often I’m finding that they don’t include the2

schedule in the filing with SEC I guess for privacy purposes3

and you’re directed to whichever law firm is the firm that4

filed the documents with the SEC, but I wasn’t even provided5

the schedule as part of this submission. 6

And again, I went onto the SEC website looking for7

it and couldn’t find it. I will also point out to Your Honor8

that the copy that I was provided and the copy that’s in front9

of Your Honor on the first page references a draft. It says10

“Sidley” -- I guess Sidley and Austin was the law firm, it was11

their draft dated 06/27/06. I don’t believe, again because12

this is labeled draft, this may not be the operative document13

but it is the only document that I was provided by the14

defendant. 15

MR. KAPLAN: I understand, Your Honor, and I wasn’t16

involved in transmitting the document but I am aware that it17

does say that.18

THE COURT: Well, I think you need to get involved 19

and -- 20

MR. KAPLAN: I did -- I did ask specifically for a21

document that was signed and essentially was final.22

THE COURT: Essentially? 23

MR. KAPLAN: Well, it was a final document --24

signed, final document, not as alleged, a draft. 25

35Colloquy

THE COURT: And you didn’t get it? 1

MR. KAPLAN: And I have not, no. 2

THE COURT: So we don’t know what this is, nor do we3

know whether it applies to this particular situation. The4

only clue we have is that it’s between Countrywide and the5

Bank of New York trustee and that it relates to Asset-Backed6

Certificate Series 2006/8 -- 7

MR. KAPLAN: Right. 8

THE COURT: -- which suggests that it might be the9

same pool, but we don’t know whether it was executed. We have10

questions raised because it’s not on the SEC website and we11

don’t have a specific listing of this particular mortgage, and12

I take it that additional time will not help you?13

MR. KAPLAN: Well, I don’t have physical access. It14

would be up to Countrywide or Bank of America -- 15

THE COURT: Well, you as counsel for Countrywide -- 16

MR. KAPLAN: Well, Your Honor, I would certainly17

request additional time to allow Countrywide, the defendant,18

to procure the documents, provide them to counsel and Your19

Honor, as well as for us to synopsize the information20

contained in there pertaining to possession and retention of21

documents. 22

THE COURT: Well, you know, this is a serious23

consequence -- this meaning the relief sought by the24

plaintiff. If there are substantial gaps in my ability to25

36Colloquy

follow the stream, then the plaintiff will be successful. I1

would offer that opportunity to Countrywide. 2

If they can’t come up with a signed legitimate3

verified copy of it -- and it can be in the first instance the4

final executed document with some tie-in to this mortgage --5

somebody has an exhibit that would, you know, list this6

mortgage theoretically -- and if they don’t, that’s a problem7

-- with a certification from a qualified Countrywide8

representative that this is what it purports to be. 9

If there are further questions, we can take further10

testimony, either in Court or by telephone conference call. I11

hate to make you come back from California, although -- and12

it’s not very nice this time of year in New Jersey, I will13

grant you that, but we can, you know, try to keep going in14

terms of getting it. 15

There is a limit and there is a burden, I fully16

agree with you, counsel. I’m pushing the envelope to see17

where we get to in terms of lining these things up or not. 18

That’s what I’m aiming for because I frankly don’t want to19

grant relief if there is something for instance in these20

documents and if the final draft has been executed and so21

forth that should guide resolution of this decision. It has22

major implications potentially. I mean, you know, my written23

decision may be ignored but it may be a basis for other such24

relief and I’d like to get it right if I can so -- 25

37Colloquy

MR. KAPLAN: I share that thought, Your Honor. I1

was going to mention, it does have significant ramifications2

because of what -- you know, the document and the physical3

retention of documents or physical transfer of the documents4

might mean to other -- you know, loans. 5

THE COURT: Then I urge Countrywide to take it6

seriously and to direct their attention to -- meaning if there7

are things that they want under seal for any reason, that’s8

certainly something that we would accommodate in the first9

instance subject to objection so there is opportunity to work10

with them on this, but they’ve got to come to the table, and I11

think that’s demonstrated by this hearing. 12

So if -- if there can be a -- if you’re right,13

counsel, number one that possession is required but if that14

possession is demonstrated by agency, one might disagree about15

whether possession can be demonstrated by agency. Perhaps16

that’s another question that is posed, even if the documents17

do support that. But let’s assume that Countrywide gets over18

that hurdle. What else would we look at -- should be look at? 19

MR. LEVITT: Again, Your Honor, the lack of20

endorsement, the fact that there’s no allonge affixed so -- 21

THE COURT: Well, affixing of the allonge we’ve sort22

of -- we’re done with. We’re -- this is not going to be a23

holder in due course but I’m not sure that it matters. You’re24

right that there is no affixing, there’s no proof that this25

38Colloquy

was affixed in the way that the Third Circuit imagined was1

necessary -- not imagined but proclaimed was necessary. 2

Your assertion would be that the allonge that was3

executed two weeks ago should not be considered as an4

appropriate transfer because it was post-petition, it was in5

the litigation, it wasn’t effective as of the date of the6

proof of claim or better yet, as of the date of the filing of7

the petition and that therefore, it is invalid. 8

MR. LEVITT: Correct, Your Honor. 9

THE COURT: And that is a very legitimate and10

important issue and I would appreciate Mr. Kaplan dealing with11

that. 12

MR. LEVITT: And so getting to the other portion,13

Your Honor, the only -- and it has nothing to do with holder14

in due course, we’re not raising the fraud issue, we’re not15

raising those issues. The issue is does this creditor have16

the right to enforce the note. So with regard to the allonge,17

luckily I have a Third Circuit decision that makes it easy. 18

With regard to the other, there’s only one other way to19

enforce and that’s to take the rights of the transferee --20

transferor under the Third Circuit decision and under 3-203.21

And again there, Your Honor, if my position is the22

trust has to be in possession of the note and the trust has to23

prove that it took possession and if we’re going to deal with24

the Pooling and Servicing Agreement -- and, Your Honor, one of25

39Colloquy

the reasons why I wasn’t moving it into evidence was because1

to me it wasn’t competent evidence at this point, again, it2

wasn’t my burden, but if counsel is going to find the3

legitimate document that’s recorded with the SEC, well that’s4

going to be the Bible, Your Honor, and that’s going to say5

that this note had to be delivered. 6

Whether it ultimately ended up with the trust --7

with the servicer, the Pooling and Servicing Agreement, if8

it’s at all close to this draft or like every other Pooling9

and Servicing Agreement I’ve read, it’s going to say it would10

have had to be physically transferred first from Countrywide11

was the originator to the depositor, and then from the12

depositor ultimately to the trust. 13

The physical documents according to the Pooling and14

Servicing have to be transferred and in this document you’re15

going to see it had to be endorsed. We’re not going to have16

that here. So if they can prove that these documents were17

physically transferred, meaning there’s delivery receipts18

showing they were physically transferred from A to B, from B19

to C, and if C decided to let its agent hold them, I think,20

Your Honor -- 21

THE COURT: Well, there’s no question on this record22

and, you know, I’m ready to accept it as fact that these23

original documents never moved. I mean, that was the24

testimony. 25

40Colloquy

MR. LEVITT: And if that’s the case, Your Honor, I1

think we’re done because unless the documents were physically2

transferred, the trust ultimately could decide to let its3

agent -- you know, Countrywide here, despite the witness’s4

beliefs and assertions, Countrywide here is wearing two5

different hats, it’s wearing the hat as Countrywide Home6

Mortgage, the one that originated these mortgages, packaged7

them and got rid of them as quickly as they possibly could,8

that’s hat number one, and then as another way to make money,9

they’re a servicer. 10

THE COURT: Right. 11

MR. LEVITT: So it’s two different -- from all12

practical purposes and in fact I think the Pooling and13

Servicing Agreement will show, it’s two separate and distinct14

legal entities, both Countrywide entities, now Bank of America15

entities. So if A, which is Countrywide the originator, ended16

up securitizing and selling this loan they would have had to17

have followed the terms of the Pooling and Servicing Agreement18

to get it into the hands of the trust and then D, which is19

Countrywide the servicer, could have gotten possession. And20

even if it meant -- even if they stayed in the same vault but21

if it meant that there was a delivery receipt from A to D or A22

to B to C to D, that’s what they have to prove. 23

And because they’re saying that, now maybe they do24

have those delivery receipts and if they want to produce them,25

41Colloquy

that’s great, but if that document never moved from that safe,1

first of all they’re in violation of their Pooling and2

Servicing Agreement, they’re in violation of the UCC -- we’re3

done. 4

THE COURT: If they’re in violation of the UCC, I’m5

agreeing with you. If they’re in violation of the Pooling and6

Servicing Agreement, I wonder how a debtor can avail7

themselves of enforcement of the pooling and servicing --8

MR. LEVITT: Third-party beneficiary.9

THE COURT: I’m sorry? 10

MR. LEVITT: They’re the third-party beneficiary of11

this contract. 12

THE COURT: Beneficiary in terms of where the13

documents are -- that’s a tough one. 14

MR. LEVITT: In terms of -- and sometimes it’s15

third-party detriment too because we have all these problems16

of the way these servicers act, but the reality is, Your 17

Honor -- 18

THE COURT: It’s a whole other story. 19

MR. LEVITT: -- we’re referenced, again, they’re20

going to produce the document, we’re going to be referenced as21

one of the loans that are subject to this Pooling and22

Servicing Agreement. 23

THE COURT: Yes, but the moving around of the24

documents are not for the benefit of the third-party25

42Colloquy

beneficiary. You can make the argument that they are because1

they act upon the UCC protections of knowing who’s holding2

what. That’s not an unreasonable argument and I’m thinking it3

out as we go, but here’s what I need, counsel. Because your4

submission didn’t focus, I would -- because you didn’t have5

the -- 6

MR. LEVITT: I -- 7

THE COURT: -- the factual basis -- 8

MR. LEVITT: Correct. 9

THE COURT: -- now you do, I would appreciate your10

honing in on your arguments. They are to -- we’ve eliminated11

the affixing as we’ve said, but I’m interested in the12

possession element. At the same time that I allow the13

defendant to amplify upon their argument by future submission,14

not only of a document that is a final version if you have it15

and can get it and can certify that that’s what it is and a16

focus on what provisions in that document I should -- on both17

sides pay attention to -- obviously, when you get it you18

provide it to counsel as well, in addition to any argument19

that you would focus me on. 20

So it’s half-baked. We’ve made some progress. 21

We’ve understood certain factual predicates that the documents22

remained where they were, that the allonge was created two23

weeks ago and those are important facts to fit into the24

equation. 25


Did you have a comment, sir? 1

MR. KAPLAN: Yeah, I’m just -- I’m just a little --2

and believe me, I understand where Your Honor is heading. I’m3

not -- I know I’m not going to change Your Honor’s mind, but4

I’m a little troubled by the fact that we’re accepting a5

representation here. And this witness is in the Litigation6

Department, this witness is not the person that was7

responsible for the Pooling and Servicing Agreement or how8

these documents are dealt with. 9

I think at the very least, even if we don’t have10

live testimony, we need to have something from someone who can11

say they’re custodian of records that truly tracks this. 12

We’re accepting a representation --13

THE COURT: Which representation?14

MR. KAPLAN: The representation that they stayed in15

the same vault and they never moved. We don’t know that, Your16

Honor. We’re -- this is -- 17

THE COURT: But let’s examine --18

MR. KAPLAN: -- and a lot of that is counsel’s19

representation.20

THE COURT: -- Ms. DeMartini in terms of her21

knowledge of that fact. 22

EXAMINATION23

BY THE COURT: 24

Q You’ve testified that these documents, the originals, the25


files -- 1

A Have remained with Countrywide. 2

Q -- stayed with -- now, are there two different entities? 3

This note was entered into with Countrywide Home Loans, Inc. 4

A Yes. 5

Q Is that the same as Countrywide Home Loan Servicing, LP?6

A Countrywide Home Loan Servicing, LP is the -- is our7

service -- is the portion of the business that does the8

servicing of the loan so they are slightly different in that9

they were both part of the -- what was formerly Countrywide10

Financial Corporation. Countrywide Servicing Home Loans, LP11

was the servicing portion of that business. They would -- and12

Countrywide Home Loans would have been the ones that13

originated the loan.14

Q Well, let’s talk first about your experience with the15

company. You said that you started about ten years ago? 16

A Yes. 17

Q And with which company, the servicer or the --18

A I’ve always been involved with servicing.19

Q In the servicing.20

A Yes. 21

Q And what were your positions with servicing?22

A Oh, I’ve had a lot of positions with servicing. I’ve been23

a customer service representative, I’ve been a supervisor,24

I’ve been a trainer, I’ve been a training developer, I’ve25


managed our Policies and Procedures writers, I’ve been a1

Communications leader, I’ve been a senior team leader, I’ve2

been a team leader auditor, a team leader trainer -- I’ve done3

all kinds of things all within the customer contact area of4

servicing.5

And as being part of customer contact we had to --6

we were involved in every aspect of the servicing. We were7

the ones that did all of the speaking to the borrowers about8

anything to do with their loans so I had to know about9

everything in order to be able to do that and in order to be10

able to train the customer service representatives. 11

In order to do that, as I stated before, I went over12

to the -- we were called the Case Management Department; now13

we’re called the Litigation Management Department. We are14

part of servicing as well under -- under -- in the loan admin15

servicing, what used to be loan admin servicing as a16

supervisor last September.17

Q What contact, if any, during your experience with18

Countrywide Servicing have you had with the loan originator19

aspect of the company?20

A I’ve never been involved specifically with the21

originations of the -- of the loans. As a servicer, we get22

involved after the loan is established and we’re the ones that23

then deal with everything after the fact. 24

Q What do you -- are you aware of the procedures that occur25


internally as between the originator and the servicer as soon1

as the loan is given? 2

A Well, after the loan’s originated, then it’s going to what3

we would have called boarded our system. I would be familiar4

with it from the time that it boarded on -- 5

Q What does that mean? 6

A Boarded is when it would get put into the computer system. 7

That would be when the documents are all imaged and then8

stored. That all happens when the loan comes on board or9

becomes a part of our servicing. What happens to it prior to10

that as far as the origination process inasmuch as the11

underwriting or any of that, that I’m not as familiar with,12

no. 13

Q When the file is -- when the loan is boarded, who does14

that? 15

A Let me find the best way to describe that. Well, the16

documents themselves, we have a Documents Department that17

would be in charge of imaging and then they would be the ones18

that would be storing the original documents. We have a19

system -- 20

Q Is that within your servicing company? 21

A That would be under our servicing company, yes.22

Q Have you ever dealt in that department -- the Documents23

Department?24

A I have not physically worked in that department. I’ve25


been in that building, I -- but for me to specifically be the1

one doing that, no, I haven’t. 2

Q Have you had occasion to go there to look for a document3

let’s say or -- 4

A I’ve had occasion to speak to people -- the documents --5

some of them are stored -- they’re stored there and then we6

also have other storage facilities. These particular7

documents are in our building because I looked these ones up, 8

but --9

Q What do you mean, you’ve looked these up -- these ones up? 10

A Well, when we went to order the originations file we11

looked -- looked for the -- the documents. The documents had12

been previously requested by our Foreclosure Department and so13

that’s where they’re located right now. The physical14

documents are in the Foreclosure Department. 15

Q The original physical documents?16

A Yeah. 17

Q So is it your custom to request original documents -- 18

A The -- 19

Q -- from this department when the Litigation Department20

needs them? 21

A If they’re requested by counsel, if they’re requested for22

various things with whether it’s within a foreclosure or a23

bankruptcy. But if there’s something that comes up where24

we’re being asked to prove something, then it’s becoming more25


customary lately. 1

It never used to be to where the originals were ever2

requested but lately more and more of the time of day of3

things around the country, we are being asked to physically4

produce the originals more frequently.5

Q And you would direct those inquiries to the Document6

Department? 7

A Yes, Document Request. It’s our DMS system, it’s our8

Document Request. 9

Q And so to your knowledge, the original documents, the10

origination documents, the notes and the mortgages are11

maintained in that facility?12

A Yes. 13

Q To your knowledge, are they ever moved except for14

inquiries from counsel? Are they ever moved to follow the15

transfer of ownership?16

A I can’t say that they’re never moved because, I mean, with17

this many millions of loans as we have I wouldn’t presume to18

say that, but it is not customary for them to move.19

Q Do you have personal knowledge of under what circumstances20

they would move or whether and to what extent they’re ever21

moved? 22

A Not -- not specifically to what I would be comfortable23

testifying to, no. 24

Q Okay. In terms of this particular transaction, from your25


experience of requesting these original documents, were you1

able to establish that these were not moved? 2

A We were able to establish that they’re in our -- what we3

call the 400 Building which is the building that we’re --4

where we’re at and we were able to establish that that’s where5

they’re located and that’s -- we were still in the process of6

trying to physically get them to bring them here today but it7

just -- I wasn’t able to obtain them in time.8

Q And your information is that they may be at the9

Foreclosure Department, but are you certain that they weren’t10

moved out of the servicing company?11

A We had Federal Express tracking. Even when we move 12

something internally like that a lot of times it will go Fed13

Ex so that we have that tracking so that’s how I know that14

they went there because I have the tracking number -- 15

Q I see. 16

A -- so that’s how I know that they’re there, and I don’t17

have any receipt or any tracking that they’ve ever moved18

beyond that. 19

Q Understood. 20

THE COURT: Did I generate additional questions? 21

MR. KAPLAN: No, Your Honor. 22

MR. LEVITT: No, Your Honor. 23

THE COURT: All right. Are there any other24

questions for Ms. DeMartini? 25

50

MR. LEVITT: No, Your Honor. 1

THE COURT: Thank you, Ms. DeMartini. You may step2

down. 3

(Witness excused) 4

5

* * *6

7

8

C E R T I F I C A T I O N

I, Diane Gallagher, court approved transcriber,

certify that the foregoing is a correct transcript from the

official electronic sound recording of the proceedings in the

above-entitled matter.

/s/Diane Gallagher November 22, 2010

DIANE GALLAGHER

DIANA DOMAN TRANSCRIBING